As we move deeper and deeper into the digital world the reliance on our mobile phones is increasing. With all the available connectivity, it can be difficult to leave our personal lives at the gate and the handling of private affairs until home time. Employers may be lenient to a point, allowing some personal phone usage, but how much is too much?
In a recent decision by the Fair Work Commission, it was deemed an employee who was dismissed for excessive use of a personal mobile phone, which included the sending of over 1,200 text messages and numerous personal calls in only 29 days, was valid and not unreasonable.
Was the employer’s reason valid?
In deciding if the employer had a valid reason to terminate the employee the Commission found due to the excessive and unacceptable number of personal communications sent in a short period of time, the employee had failed to dedicate her full time and attention to her work responsibilities as required, therefore validating the employers reason of termination. The Commissioner commented that they found it “impossible to believe that [the employee] did any work at all” .
Employees need to pay attention
When an employee fails to devote their full attention to their work and surroundings, especially when working in a high risk setting such as a construction site, big or small, the consequences can be severe, posing potential risks to the health and safety of others. This case is a timely reminder of the contractual and legislative obligation of all workers and employers, to ensure that all workers understand the importance that when at work they are required to devote their time and attention to the job at hand.
Procedure is key
Of course, any action taken against an employee for not following lawful and reasonable instructions, including the direction to limit personal mobile phone use, should always be done in a procedurally fair and reasonable way. In this particular case there were some procedural issues raised by the Commission in how the termination was carried out, that being the provision of a verbal warning only, prior to termination. The Commissioner commented it is always “preferable to have clear, undisputed evidence” to support the reasons for termination and that the employee was given time to improve or rectify the behaviour. In this case the verbal direction issued was determined sufficient, however employers should take note that this will not always be the acceptable standard.
Want more information?
The Mater Builders Workplace Relations and Legal team are here to help. Reach out to the team today on (02) 6175 5900.
Please see Lynda Murphy v Clear Day Pty Ltd  FWC 373 (22 February 2022) if you wish to read the full decision.